In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.Feb 10, 2015To be Argued by: IRA M. FEINBERG (Time Requested: 20 Minutes) APL-2013-00248 New York County Clerk’s Index No. 103461/10 Court of Appeals of the State of New York In the Matter of the Application of KATIE KICKERTZ, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – NEW YORK UNIVERSITY, Respondent-Appellant. BRIEF FOR RESPONDENT-APPELLANT IRA M. FEINBERG JORDAN L. ESTES HOGAN LOVELLS US LLP Attorneys for Respondent-Appellant 875 Third Avenue New York, New York 10022 Tel.: (212) 918-3000 Fax: (212) 918-3100 Date Completed: April 4, 2014 i CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(f) of the Rules of this Court, New York University states that it is a not-for-profit education corporation under the laws of the State of New York, that it has no parent, and that its subsidiaries and affiliates are listed below: 34th Street Cancer Center, Inc. CCC 550 Insurance SCC Harold Acton Trust Hortense Acton Trust International Art Fund Institute of Fine Arts Foundation Jurodin Fund La Pietra Corporation National Center on Philanthropy and the Law New York University in Abu Dhabi Corporation New York University in France New York University Medical Center Condominium New York University School of Business (Leonard N. Stern School of Business) Foundation Niu Da Educational Information Consulting (Shanghai) Co., Ltd. NYU Columbus Medical P.C. NYU Hospitals Center NYU Imaging, Inc. NYU in London NYU Real Estate Corporation NYU School of Law Foundation NYU School of Law Housing Assistance Corporation NYU School of Law Recruitment Assistance Corporation NYU School of Law Retention Assistance Corporation NYU in Tel-Aviv Ltd. NYU Tisch International (London) Limited  NYU Tisch School of the Arts, Asia, Ltd. ii New York University VEBA Trust Polytechnic Institute of New York University Washington Square Legal Services, Inc. iii STATEMENT OF RELATED LITIGATION Respondent-Appellant New York University is appealing from a final judgment entered by the Supreme Court on July 24, 2013, which granted the Article 78 petition of Petitioner-Respondent Katie Kickertz on the authority of the decision of the Appellate Division, First Department, dated October 11, 2012, which reversed the Supreme Court’s earlier grant of the University’s motion to dismiss and, by a 3-2 vote, ordered that the petition be granted. Pursuant to Section 500.13(a) of the Rules of this Court, the Court should be aware that there are two related matters arguably pending in the lower courts. First, Kickertz has filed a notice of appeal from the same Supreme Court judgment in the Appellate Division, First Department, to the extent that the Supreme Court’s judgment did not give her all the relief that she sought (in particular, an order awarding her an NYU degree and her attorney’s fees). As discussed below, in the procedural posture of this case, there is nothing improper about appeals proceeding simultaneously in the Court of Appeals and the Appellate Division. See Harry R. Defler Corp. v. Kleeman, 18 N.Y.2d 797, 798 (1966). In any event, Kickertz has not yet perfected that appeal. Second, at the same time that she filed the instant Article 78 petition, Kickertz also filed a plenary lawsuit alleging 16 causes of action and seeking damages against the University and three of its faculty or staff, Ivan Cornejo, Dr. iv David Hershkowitz and Dr. Harry Meeker. Kickertz v. New York University et al.¸ Index No. 103462/10 (Supreme Court, New York County). The Supreme Court granted defendants’ motion to dismiss that action, in the same opinion that dismissed the Article 78 petition, and Kickertz filed a separate appeal of that ruling. On September 10, 2013, the Appellate Division, First Department issued an opinion affirming the dismissal of ten causes of action, but modifying the Supreme Court’s order to permit Kickertz to replead six causes of action. To date, Kickertz has not filed an amended complaint repleading any of those causes of action. v TABLE OF CONTENTS Page PRELIMINARY STATEMENT ...............................................................................1 STATEMENT OF JURISDICTION..........................................................................6 QUESTIONS PRESENTED......................................................................................7 STATEMENT OF FACTS ........................................................................................8 A. Kickertz and the Practice Model Value Requirement...........................8 B. Kickertz’ Falsification of Patient Treatment Records...........................9 C. Dr. Hershkowitz’ Email Reporting Kickertz’ Misconduct. ................11 D. The 2009 Code of Ethics.....................................................................13 E. The Investigating Panel’s Investigation. .............................................14 F. Proceedings Before the Peer Review Board. ......................................17 G. Proceedings in the Supreme Court. .....................................................20 H. The Supreme Court’s Decision. ..........................................................21 I. The Appellate Division’s Decision. ....................................................24 1. The Majority Opinion. .................................................................. 24 2. The Dissent.................................................................................... 28 J. The University’s Initial Appeal to this Court......................................28 K. The Supreme Court’s Entry of Final Judgment. .................................29 L. Prior Proceedings on this Appeal. .......................................................30 ARGUMENT ...........................................................................................................31 I. The Court Has Jurisdiction Over the University’s Appeal............................31 vi A. Two Justices Dissented on a Question of Law....................................32 1. The Appellate Division Did Not Agree on the Appropriate Legal Standard......................................................................................... 32 2. Whether Disputed Issues of Fact Exist Is a Question of Law. ..... 35 B. The Dissent Would Have Ruled in the University’s Favor. ...............36 C. The University Has Not Failed to Preserve this Issue. .......................37 II. The Appellate Division Erred as a Matter of Law in Granting the Article 78 Petition Without Allowing the University to Answer. ..................................38 A. The Appellate Division Misinterpreted the BOCES Exception. .........39 B. The BOCES Exception Is Inapplicable. ..............................................42 1. The Appellate Division Erred in Determining That the Facts Were Fully Presented.............................................................................. 43 2. The Appellate Division Erred in Determining That There Were No Disputed Issues of Fact. ................................................................ 45 3. The University Was Prejudiced. ................................................... 50 C. This Court Should Vacate the Appellate Division’s Merits Rulings..50 D. The Appellate Division Erred in Granting the Petition, Even if the University was Not Entitled to Answer. .............................................53 III. The Supreme Court Properly Dismissed Kickertz’ Petition. ........................54 A. The Governing Legal Standards..........................................................54 B. The Appellate Division Erred in Determining that the University Violated Its Disciplinary Guidelines...................................................56 C. The Appellate Division Erred In Determining that Kickertz’ Dismissal Had No Academic Component. ..........................................................66 vii D. The Appellate Division Erred In Stating that Kickertz’ Dismissal Should Be Overturned Because it Shocked the Court’s Conscience..67 CONCLUSION........................................................................................................70 viii TABLE OF AUTHORITIES Page(s) CASES 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447 (1983) .........................................................................................40 Dequito v. New School for General Studies, 68 A.D.3d 559 (1st Dep’t 2009) .........................................................................69 Flores v. New York University, 79 A.D.3d 502 (1st Dep’t 2010) .........................................................................69 Guaspari v. Gorsky, 29 N.Y.2d 891 (1972) .........................................................................................36 Harris v. Trustees of Columbia Univ., 98 A.D.2d 58 (1st Dep’t 1983) ...........................................................................65 Harry R. Defler Corp. v. Kleeman, 18 N.Y.2d 797 (1966) .........................................................................................30 Health Dep’t of City of N.Y. v. Dassori, 159 N.Y. 245 (1899) ...........................................................................................35 Hemphill v. Hemphill, 78 N.Y.2d 1070 (1991) .......................................................................................37 Idahosa v. Farmingdale State Coll., 97 A.D.3d 580 (2d Dep’t 2012)..........................................................................68 Katz v. Bd. of Regents of the Univ. of the State of N.Y., 85 A.D.3d 1277 (3d Dep’t 2011)........................................................................66 Kelly v. Safir, 96 N.Y.2d 32 (2001) .....................................................................................47, 48 La Riviere v. EEOC, 682 F.2d 1275 (9th Cir. 1982) ............................................................................35 Lucas v. N.Y. City Tr. Auth., 76 N.Y.2d 933 (1990) .........................................................................................37 ix Matter of 230 Tenants Corp., 101 A.D.2d 53 (1st Dep’t 1984) .........................................................................40 Matter of Bd. of Educ. of Monticello, 91 N.Y.2d 133 (1997) .........................................................................................61 Matter of Bethelite Cmty. Church, 8 N.Y.3d 1001 (2007) .........................................................................3, 33, 34, 39 Matter of Daniel H., 15 N.Y.3d 883 (2010) .........................................................................................36 Matter of Ebert, 28 A.D.3d 315 (1st Dep’t 2006) ...................................................................64, 65 Matter of Estate of Duchnowski, 31 N.Y.2d 991 (1973) .........................................................................................54 Matter of Fernandez, 16 A.D.3d 227 (1st Dep’t 2005) .........................................................................55 Matter of Kickertz, 20 N.Y.3d 1004 (2013) .......................................................................................29 Matter of Nassau BOCES Cent. Council of Teachers, 63 N.Y.2d 100 (1984) ..................................................................................passim Matter of Olsson, 49 N.Y.2d 408 (1980) ...................................................................................55, 68 Matter of Pell, 34 N.Y.2d 222 (1974) .........................................................................................67 Matter of Rensselaer Soc’y of Engineers, 260 A.D.2d 992 (3d Dep’t 1999)............................................................48, 54, 57 O’Hara v. Del Bello, 47 N.Y.2d 363 (1979) .........................................................................................40 People ex rel. City of New York v. Yale, 249 N.Y. 150 (1928) .....................................................................................37, 38 x Rich v. Lefkovits, 56 N.Y.2d 276 (1982) .........................................................................................40 Sandford v. City of N.Y. Dep’t of Educ., 22 N.Y.3d 914 (2013) .........................................................................................35 Shah v. Union College, 97 A.D.3d 949 (3d Dep’t 2012)..........................................................................64 Susan M. v. New York Law School, 76 N.Y.2d 241 (1990) .........................................................................................55 Tedeschi v. Wagner College, 49 N.Y.2d 652 (1980) ..................................................................................passim Tyson v. Nazarian, 20 N.Y.3d 967 (2012) .........................................................................................35 Vega v. Restani Constr. Corp., 18 N.Y.3d 499 (2012) .........................................................................................36 Zartoshti v. Columbia Univ., 79 A.D.3d 470 (1st Dep’t 2010) .........................................................................55 STATUTES CPLR 3211(c) ..........................................................................................................40 CPLR 7804(f)...........................................................................................................33 CPLR § 404(a) ...................................................................................................33, 39 CPLR § 5601(a) ................................................................................................passim CPLR § 5601(d) .............................................................................................6, 30, 31 CPLR § 7804(f).................................................................................................passim OTHER AUTHORITIES 22 NYCRR § 500.11................................................................................................30 N.Y. Const. Art. 6 § 3(a)..........................................................................................35 1 PRELIMINARY STATEMENT Respondent-Appellant New York University appeals from the judgment of the Supreme Court, New York County, dated July 24, 2013, which granted the Article 78 petition of Petitioner-Respondent Katie Kickertz. The Supreme Court entered that judgment to implement the decision of the Appellate Division, First Department, dated October 11, 2012, which had reversed the Supreme Court’s earlier grant of the University’s motion to dismiss Kickertz’ petition and had ruled, over the dissent of two Justices, that Kickertz’ petition should be granted. Kickertz was formerly a student in the University’s College of Dentistry. She was dismissed in November 2009 for falsifying patient treatment records in an effort to meet one of the school’s academic requirements, the completion of a required number of clinical credits. Prior to her dismissal, the College carefully investigated the facts and provided Kickertz with substantial process, in accordance with the Code of Ethics it adopted in March 2009 (the “2009 Code”). This included an investigation conducted by two student members of the College’s Peer Review Board (the “Investigating Panel”), in which they interviewed the key witnesses, including Kickertz, and prepared a detailed report; review and approval of the Investigating Panel’s conclusions by the full Peer Review Board (“PRB”); a hearing before the PRB, where Kickertz and her faculty adviser had a chance to respond to the charges against her; review of the PRB’s decision by the faculty 2 College Review Board; and, finally, on Kickertz’ appeal, further review of the decision by the Dean. In March 2010, Kickertz filed an Article 78 petition challenging her dismissal. Relying on the procedures specified in the superseded Code of Ethics that had been adopted by the College in 2005 (the “2005 Code”), Kickertz alleged that the University had not substantially followed its own disciplinary rules. In support of her petition, Kickertz submitted two detailed factual affidavits, from herself and her faculty advisor, and numerous exhibits. Rather than answer the petition, the University moved to dismiss, arguing that the facts alleged by Kickertz showed that – when the correct Code was applied – the University had substantially complied with its own disciplinary rules and that the decision to dismiss her was not arbitrary or irrational. The University did not contest Kickertz’ factual allegations, understanding that, for purposes of the motion, the Supreme Court would have to accept Kickertz’ allegations as true. The University submitted only a short declaration and two exhibits, to put before the Court the revised Code adopted in 2009 and to establish the quasi-legal point that the relevant disciplinary rules and procedures were contained in the 2009 Code rather than the 2005 Code. On February 3, 2011, the Supreme Court (Schlesinger, J.) granted the University’s motion. The Court held that Kickertz’ dismissal was based both on 3 application of the University’s disciplinary rules and on its academic standards, and emphasized the limited scope of judicial review applicable to the decisions of private universities. As a disciplinary matter, the Court held that the University had substantially complied with the procedures in the 2009 Code, and that Kickertz’ “reliance on an outdated set of rules is misplaced.” R.11. As an academic matter, the Court held that the University properly considered the ethical aspects of Kickertz’ conduct as an element of the curriculum, R.9, 12-13, and that the decision to dismiss Kickertz was not arbitrary, capricious or irrational. R.13. On appeal, the Appellate Division reversed. Rather than remanding to permit the University to answer, however, the Appellate Division – over the dissent of two Justices – ruled that Kickertz’ Article 78 petition should be granted. This was a clear error of law. This Court has held that courts generally must permit the respondent to answer before granting or denying an Article 78 petition. See Matter of Nassau BOCES Cent. Council of Teachers, 63 N.Y.2d 100 (1984); Matter of Bethelite Cmty. Church, 8 N.Y.3d 1001 (2007). Indeed, CPLR § 7804(f) expressly provides that, following denial of a pre-answer motion to dismiss an Article 78 proceeding, “the court shall permit the respondent to answer.” (Emphasis added). The Appellate Division invoked the narrow exception to this rule that the Court discussed in BOCES: that it might be permissible to dismiss an Article 78 4 petition without an answer if “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer.” 63 N.Y.2d at 102. But this exception plainly does not apply here. This is not a case that involves a pure issue of law. On the contrary, the facts regarding what Kickertz did, what she admitted, and what procedures the University followed are critically important. And the Appellate Division’s opinion repeatedly noted that the record was incomplete and that many key facts were disputed, including which records Kickertz falsified; when she was notified she had not completed the requirements; what transpired the day she falsely claimed that she had treated patients to obtain the credits she needed; and the facts regarding the hearing before the PRB. Moreover, the record was not fully developed, as the BOCES exception requires. On the contrary, the record is one-sided and contains only Kickertz’ self- serving version of the facts. Critical pieces of evidence are missing, including the summary of the PRB hearing, documents regarding the subsequent reviews of that decision, and the records falsified by Kickertz. The Appellate Division erred in repeatedly crediting Kickertz’ version of the facts, when the University had not had an opportunity to contest them; in disregarding the Investigating Panel’s report as “hearsay,” when the report was a proper basis for the PRB’s decision; and in 5 faulting the University for failing to corroborate its witnesses’ testimony, when there was no reason to question the report’s reliance on their testimony. Thus, at a minimum, the Court should vacate the Appellate Division’s decision – and all of the conclusions on the merits that the Appellate Division improperly reached, when it only had one side of the record before it – and remand to the Supreme Court for the University to answer and further proceedings. But beyond that, we respectfully submit that the Supreme Court was correct in dismissing Kickertz’ Article 78 petition; this Court should accordingly reverse the decision of the Appellate Division in its entirety and reinstate the Supreme Court’s decision to grant the University’s motion to dismiss. While the record is incomplete, the Investigating Panel reasonably found – based on the testimony of Kickertz’ professors and the admissions of Kickertz herself – that she had falsified patient treatment records and claimed to have performed procedures that she had not in fact performed. This was a clear violation of the College’s Code of Ethics, and amply justified the University’s decision to dismiss her. As this Court held in Tedeschi v. Wagner College, 49 N.Y.2d 652, 660 (1980), judicial review of a private university’s disciplinary decisions is limited to whether the university “substantially observed” its own disciplinary rules. The University properly relied upon the 2009 Code in this case, and there is no basis for the Appellate Division’s ruling that it did not substantially comply with it. 6 Contrary to the Appellate Division’s decision, the University was entitled to rely upon the findings of the Investigating Panel and PRB, and they cannot properly be dismissed as “hearsay.” The Appellate Division’s decision disregards the great deference to which universities are entitled in their disciplinary and academic decisions, and improperly imposed trial-type procedural protections on the University’s disciplinary proceedings that are completely inapposite here. The Appellate Division also erred in dismissing out of hand the University’s contention (and the Supreme Court’s holding) that Kickertz’ dismissal was also justified on academic, as well as disciplinary, grounds. As the Supreme Court found, ethical considerations are an appropriate part of the College of Dentistry’s curriculum. The decision to deny Kickertz a degree thus reflects the University’s academic decision that a student who falsified documents in order to obtain required clinical credits has failed the ethical component of the education provided by the College, and is not entitled to a D.D.S. degree. The Appellate Division should have deferred to that academic judgment and dismissed the petition. STATEMENT OF JURISDICTION As discussed in detail below, the Court has jurisdiction to hear this appeal pursuant to CPLR §§ 5601(a) and 5601(d). In accordance with CPLR § 5601(d), this appeal is taken from the final judgment of the Supreme Court, entered July 24, 2013, which was necessarily affected by the ruling of the Appellate Division on 7 Kickertz’ prior appeal, granting her Article 78 petition. Moreover, the Appellate Division’s decision satisfies the requirements for an appeal under CPLR § 5601(a), because there was a dissent by two Justices on a question of law – whether the court erred in granting the petition without giving the University the opportunity to answer – and the dissenting Justices would have ruled in the University’s favor. QUESTIONS PRESENTED 1. Does this Court have jurisdiction over this appeal, where two Justices in the Appellate Division dissented on the issue whether the University was entitled to answer the Article 78 petition? 2. Did the Appellate Division err as a matter of law in granting Kickertz’ Article 78 petition on her appeal after the University’s motion to dismiss had initially been granted, without allowing the University an opportunity to answer? 3. Did the Appellate Division err as a matter of law in reversing the Supreme Court’s order granting the University’s motion to dismiss, where the facts alleged by Kickertz established that the University substantially observed its applicable rules in the disciplinary proceedings? 4. Did the Appellate Division err as a matter of law in rejecting the Supreme Court’s decision that Kickertz’ dismissal was also an academic decision as to which the court was required to defer? 8 5. Did the Appellate Division err as a matter of law in concluding that Kickertz’ dismissal from the University was shocking to the court’s sense of fairness, given Kickertz’ falsification of patient treatment records? STATEMENT OF FACTS A. Kickertz and the Practice Model Value Requirement. Kickertz was a student in the University’s College of Dentistry, and was scheduled to graduate in May 2009. R.24. Among other academic requirements, Kickertz was required to complete a clinical course in General Dentistry, R.83-88, 99-100, where students were required to treat patients and complete a certain number of procedures. The required procedures were measured by ascribing dollar values to dental procedures, which were called Practice Model Values (“PMV”). R.60-62. Students were required to obtain PMV credits corresponding to a total of $21,000 in their fourth year. R.60-61. Although measured in dollar-equivalent terms, the purpose of these requirements was to give students clinical experience in a group practice setting, and train them in dental practice management, R.83, with the goal of “graduat[ing] efficient and ethical practitioners ready to meet the challenges of ‘the real world’.” R.84.1 1 Kickertz alleges that the purpose of this program was simply to generate revenue for the University, R.33, 66-67, 472, and the Appellate Division seemingly accepted this claim, R.640-41, 645-46, 648-49, even though the University has never had an opportunity to address it. The University strongly disputes this 9 Each student was assigned to a University group practice clinic, headed by a group practice director. R.84. Kickertz’ group practice director was Dr. Harry Meeker. On May 25, 2009, the night before her graduation, Dr. Meeker told Kickertz by email that she might be short of satisfying the PMV requirement. R.64, 97. Kickertz alleges that this was the first time she had heard there was any issue about her satisfaction of the PMV requirements. R.65. Dr. Meeker disputed this, and told the Investigating Panel that he had notified Kickertz she was short of her PMV requirement in mid-April and had regularly updated her after that. R.116. B. Kickertz’ Falsification of Patient Treatment Records. On May 27, 2009, Dr. Meeker notified Kickertz that she was short by approximately $2,000, and would need to fulfill her PMV requirement before she could graduate. R.65, 101. Kickertz told Dr. Meeker that she was already in Boston to begin a post-graduate residency, and could not come back. R.100. Kickertz asked if she could have one of her fellow students “‘donate’ the extra money” to satisfy the requirement or if she could “simply write a check” to cover it. R.100. Dr. Meeker rejected these offers, and told Kickertz that the shortage was “not a bookkeeping issue; it is an academic one.” R.99. He explained that the PMV requirement was an aspect of the College curriculum and must be attained to receive a D.D.S. degree. Id. Dr. Meeker noted that Kickertz’ shortage may have contention and is prepared to demonstrate, if given the opportunity, the academic purposes served by the PMV requirement. 10 resulted from the fact she had treated only 10 patients during 36 clinic sessions in April, and did not treat any patients in May. R.99-100. On May 30, 2009, Kickertz emailed Dr. Meeker and told him that she had been dealing with medical issues over the past two months, but had not wanted to discuss it. R.102. She asked if she could complete her PMV requirements by having family members purchase at-home bleaching treatments, or simply pay the school the money she was short. R.102. Kickertz alleges that other students had been permitted to satisfy PMV requirements by purchase of such home bleaching kits. R.66. Kickertz also acknowledged that “[t]his situation is my fault.” R.99. Two days later, on June 1, 2009, Kickertz returned to New York and met with Dr. Meeker and Dr. David Hershkowitz, one of her clinical professors. R.66. According to Kickertz, Dr. Meeker instructed her to “just get the money” to complete the PMV requirement. R.66. As discussed below, the doctors disputed her account. R.115-17. After the meeting, Kickertz went to Dr. Hershkowitz’ secretary, Luz Tartaglia, and gave her false “encounter forms” relating to alleged patient treatments costing a total of $2,050. R.66-67, 437. Kickertz paid the secretary $200 in cash and $1,850 on her credit card. R.67. Kickertz alleged that she did so because she “truly believed that Dr. Meeker and Dr. Hershkowitz had directed me to pay the balance of what I allegedly owed out of pocket.” R.437. She claims 11 that this was consistent with the culture of the University, which “perpetrated the idea that the most important thing was to generate revenue for NYU.” R.67. Kickertz then left the clinic. She returned later that afternoon, in response to a voicemail, and was called into Dr. Meeker’s office for a meeting with Dr. Meeker, Dr. Hershkowitz, and Ivan Cornejo, the clinic manager. R.67. In that meeting, Kickertz admitted that she “did not see the patients” that the encounter forms stated she had seen, and that she had paid the PMV herself. R.67.2 C. Dr. Hershkowitz’ Email Reporting Kickertz’ Misconduct. Dr. Hershkowitz sent a detailed email the same day to Dr. Mark Wolff, the Associate Dean, informing him of Kickertz’ misconduct and providing a detailed recital of the events that day. R.114-15.3 Dr. Hershkowitz explained that he and Dr. Meeker met with Kickertz and told her that she was expected to satisfy the PMV requirement. Two hours later, Dr. Hershkowitz was informed by Dr. Meeker and Mr. Cornejo that Kickertz would satisfy her PMV requirement that day, as she claimed she had already completed sixteen tooth extractions that morning and had a bleaching appointment scheduled for the afternoon. R.114. 2 On June 2, 2009, Kickertz met with Dr. Mark Wolff, and he instructed her to start working on the PMV credits she needed. R.67. Kickertz alleges that she ultimately completed her PMV requirement on June 8, 2009. R.68. 3 Kickertz submitted a copy of the Investigating Panel’s report, which included the verbatim text of Dr. Hershkowitz’ email, as an exhibit to the affidavit she filed in support of her petition. R.114-19. 12 Dr. Hershkowitz explained that he did not believe this level of activity was possible, and accordingly decided to look into it. He discovered that the “treatments” had been paid on Kickertz’ credit card, and were supposedly for four different patients. He was informed that these treatments had supposedly been performed in Oral Surgery, but found that Oral Surgery had no record of them. The Oral Surgery manager called the four patients, and was able to reach two, but both said they had not been treated that day. Dr. Hershkowitz also reviewed the charts of these patients. Three showed no entries reflecting treatment that day, but the fourth chart – for one of the patients who said she had not been treated – recited falsely that six extractions had been performed that day. The signatures of the student who allegedly performed the work and the faculty member who allegedly supervised it were illegible, but Kickertz’ student number was legible. R.114. Kickertz was therefore contacted by Dr. Meeker and asked to return to the school immediately. When confronted by Drs. Hershkowitz and Meeker, Kickertz admitted she had not performed any extractions. She also admitted that she had fraudulently made entries in one patient’s chart, showing that the patient received six extractions, and that she had signed an illegible signature on the form. Kickertz further admitted that she fraudulently signed a “start” on the encounter forms so that the receptionist would enter the treatments on the College’s records. R.114. 13 Later that day, Kickertz returned and asked to speak with Dr. Hershkowitz. Kickertz said that she was “sorry,” reiterated that she had not performed any treatments that day, and explained that she had acted in “panic mode” and “didn’t think.” R.115. Dr. Hershkowitz immediately advised her of the gravity of the situation. Id. D. The 2009 Code of Ethics. Dr. Wolff promptly forwarded Dr. Hershkowitz’ email to Dr. Anthony Palatta, the Assistant Dean for Student Affairs, who initiated an investigation. R.114. The investigation was conducted pursuant to the 2009 Code of Ethics, which had been adopted in March 2009. R.302. The new Code was designed “to put the ethics of the student body in the hands of its students,” R.304, and contained material differences from the 2005 Code previously in effect. For instance, under the 2009 Code, the body responsible for reviewing student ethical violations was a group of nine dental students known as the Peer Review Board. R.304, 310. The PRB was responsible for adjudicating violations of the Code, R.262, 264, and appointment to the Board was considered a “high honor and responsibility.” R.262. In contrast, under the 2005 Code, alleged ethical violations were reviewed by the Committee on Ethics and Professionalism, which consisted of nine faculty members and nine student members. R.107. Similarly, the 2009 Code provided that the Investigating Panel would consist of two students who were 14 members of the PRB. R.215. In contrast, under the 2005 Code, the Investigating Panel would consist of one faculty member and one student. R.108. Moreover, while the 2005 Code provided that a student could be accompanied at a hearing by an adviser or legal counsel, R.109, the 2009 Code provided only that the student could be accompanied by an adviser, who could be a faculty member or other person in the College community, and did not give a student the right to be accompanied by counsel. R.313. These changes were designed to give students the opportunity to “learn to identify unethical behaviors within their class, and take responsibility for handling these infractions.” R.304. However, all decisions of the PRB were subject to review by the College Review Board, made up of three faculty members. R.312- 13. The 2009 Code also gave a student the right to appeal the decision of the PRB to the Dean of the College of Dentistry. R.313. E. The Investigating Panel’s Investigation. Pursuant to the 2009 Code, an Investigating Panel, consisting of two student members of the PRB, was convened. R.114. The Investigating Panel conducted a thorough investigation of Kickertz’ alleged misconduct. The Investigating Panel first interviewed Dr. Hershkowitz, who confirmed the facts in his email, and provided additional details. R.115. Dr. Hershkowitz explained that Kickertz had used four encounter forms to document the following 15 alleged treatments: (1) six extractions on one patient, (2) eight extractions on another patient, (3) two extractions on another patient, and (4) two arches of in- office bleaching and two arches of take-home bleaching for a fourth patient. Id. Dr. Hershkowitz also explained that Kickertz falsified a chart for one of those patients, and included on the chart false details about the patient’s supposed blood pressure, the administration of local anesthesia with epinephrine, and post- operative instructions. Id. Dr. Hershkowitz told the panel that Kickertz first lied about the treatments, claiming that she had in fact performed them, but later admitted that she did not do any treatments that day. Id.4 The Investigating Panel also interviewed Kickertz. Kickertz admitted that after she met with Drs. Meeker and Hershkowitz on June 1, she “panicked” and “did not know what to do,” and then “did something that was out of my character.” R.115. She also admitted that she had forged treatment records for four patients and a chart entry for one patient. R.116.5 The Investigating Panel also asked if she 4 In her affidavit, Kickertz claimed that several of Dr. Hershkowitz’ statements to the Panel were inaccurate – in particular, his statement that on the morning of June 1, he had left Dr. Meeker to place patients on her roster so that she could satisfy the PMV requirements. R.71. But significantly, Kickertz did not dispute any aspect of Dr. Hershkowitz’ description of her conduct in falsifying patient records or his description of the admissions she made to him. 5 Kickertz now claims that she did not admit to “falsifying patient records,” R.436, although the evidence before the Investigating Panel established overwhelmingly that she had. Kickertz does not contest, however, that she falsified the encounter forms that she submitted. Rather, in an effort to minimize 16 was sick, and she responded that she was a private person and did not want to discuss the issue in detail, but had started going to counseling. R.116. The Investigating Panel also interviewed Dr. Meeker. He explained that Kickertz had started acting strangely in the five to six weeks before graduation and had been difficult to communicate with. R.116. He told the Panel that Kickertz would come to the clinic to sign her attendance, but would then disappear during clinic sessions. R.116. Dr. Meeker said that he notified her that she was short of her PMV requirement in mid-April, and regularly updated her about her deficiency in the weeks leading to graduation. R.116. Dr. Meeker also corroborated Dr. Hershkowitz’ version of the events on June 1, 2009. R.116-17.6 The Investigating Panel also interviewed Mr. Cornejo. He confirmed that Kickertz told him on June 1 that she had done sixteen extractions that morning, and that, in the meeting with Dr. Hershkowitz that afternoon, Kickertz initially denied that she had not done these treatments. R.116. The Investigating Panel also reviewed numerous emails between the parties. R.117-19. the gravity of her wrongdoing, she dismisses those forms as “internal NYU documents that support staff uses to monitor the PMV payments of students.” Id. 6 Kickertz disputes many of Dr. Meeker’s statements to the Investigating Panel, including his assertions that he notified her she was short on the PMV requirement by mid-April, that she had failed to treat any patients in May, and that she had been absent from the clinic before graduation, as well as his account of the events and conversations on June 1. R.70. 17 At the conclusion of its investigation, the Investigating Panel issued a formal report. R.114-19. The Panel found that Kickertz had forged a fraudulent chart entry and forged fraudulent treatment records for multiple patients. R.117. The Panel recommended that she be dismissed from the College of Dentistry. Id. F. Proceedings Before the Peer Review Board. The Peer Review Board convened on July 1, 2009. Based on the report of the Investigating Panel, the PRB determined that Kickertz had made a fraudulent entry in one patient’s chart and forged fraudulent treatment records for other patients, and recommended that Kickertz be dismissed from the College. R.113. The College Review Board, composed of three faculty members, then reviewed the Investigating Panel’s report and the PRB’s recommendation, and determined that the investigation was thorough and the recommended sanction reasonable and appropriate. Id. Accordingly, on July 16, 2009, the University sent Kickertz a letter stating that she was dismissed. R.69, 113. The University also provided Kickertz with a copy of the Investigating Panel’s report. R.70. The University’s July 16 dismissal was admittedly in error, because the 2009 Code gives a student facing dismissal the right to a hearing before the PRB. R.265. Kickertz brought this to the University’s attention, and it immediately corrected the error. R.281. The University withdrew the July 16 letter, and scheduled a hearing on August 13, 2009. R.120. Kickertz failed to appear on that date, but requested a 18 new date. R.281. The University agreed to accommodate that request, and scheduled a new hearing for October 7, 2009. R.159, 281. The University proceeded under the 2009 Code. Under that Code, a hearing “shall be conducted in a manner to achieve substantial justice,” but is “not restricted by the rules of evidence used in a court of law.” R.265. At the hearing, “[t]he charges and supporting evidence shall be presented by the Investigating Panel.” R.265. The parties may call witnesses, and “[e]ach side shall have a fair opportunity to question the witnesses of the other.” R.265. A student may be accompanied by an “advisor, who may be a member of the faculty or any member of the College community.” R.265. All other matters of procedures are to be determined by the PRB in its discretion. R.265. Kickertz requested that her attorney be allowed to represent her during the hearing. R.120-21. Alternatively, Kickertz wrote to Dr. Palatta to request that her adviser be permitted to question witnesses on her behalf. R.152. She also requested copies of various documents. R.152-53. In response, Dr. Palatta reactivated her University email account, so that she could obtain materials available on the College internal website and from her own email. R.157. He also sent Kickertz another copy of the PRB report, which included the findings of the Investigating Panel. Id. Dr. Palatta told Kickertz that her request for documents concerning disciplinary proceedings of other students was inappropriate. Id. He 19 also informed her that her request to allow a faculty member to question witnesses on her behalf was “inconsistent with the relevant rules.” Id. Kickertz alleges that she requested that Dr. Meeker, Dr. Hershkowitz, and Mr. Cornejo attend the hearing, and that the University denied her request. R.76. Kickertz also alleges that she emailed these individuals about the hearing, but “never heard back” from them. R.77. At the hearing, Kickertz gave a statement in her defense. R.74-75. After reviewing the evidence, the PRB voted unanimously that Kickertz should be dismissed from the College of Dentistry. R.159.7 On October 23, 2009, the College Review Board reviewed and confirmed the decision of the PRB. Id. Accordingly, by letter dated October 27, 2009, Dr. Palatta informed Kickertz that she had been dismissed from the College. Dr. Palatta also advised Kickertz that she had the right to appeal the decision to the Dean, Dr. Charles Bertolami. Id. Kickertz appealed to Dr. Bertolami in a 13-page letter, dated November 11, 2009. R.161-73. Kickertz argued that the decision should be reversed on four grounds: because (1) the PMV program was instituted after her enrollment at the University; (2) her advisor, Dr. Meeker, had been negligent in his responsibilities, and lied and defamed her before the PRB; (3) the University should grant her a reasonable accommodation, allowing her to complete any outstanding 7 The Peer Review Board’s reasoning is set forth in the minutes of the October 7, 2009 hearing, but that document is not in the record before the Court. 20 requirements for graduation, because she suffered from severe mental disorders; and (4) her hearing before the PRB had been conducted without due process and in violation of the 2005 Code. R.161. In her letter, Kickertz implicitly admitted her guilt, explaining that her actions were “out of [her] character” and that she “did not intend to deceive anyone.” R.168. But Kickertz failed to take any responsibility for her actions. Rather, she blamed her actions on “failures of communication” with Dr. Meeker and Dr. Hershkowitz, and her “misinterpretation” of their directions. R.172. On November 17, 2009, Dr. Bertolami denied Kickertz’ appeal and declined to reverse the decision of the College Review Board. R.30. G. Proceedings in the Supreme Court. On March 14, 2010, Kickertz filed an Article 78 petition in the Supreme Court.8 The petition alleged that Kickertz’ dismissal should be reversed because the University failed to comply with its written policies and because the decision was unfair, arbitrary, and capricious. R.24. Kickertz’ claims were premised entirely on the 2005 Code, which specified procedures markedly different from the 2009 Code. See R.27-29. In support of the petition, Kickertz filed two affidavits – by herself and her faculty advisor, Dr. Eric Ploumis – and 27 exhibits. R.60-267. 8 At the same time, Kickertz filed a separate plenary action against the University, Mr. Cornejo, Dr. Hershkowitz and Dr. Meeker, asserting sixteen causes of action and seeking damages. Kickertz v. New York University et al.¸ Index No. 103462/10 (Supreme Court, New York County). 21 The University moved to dismiss. R.268-69. Recognizing that on a motion to dismiss Kickertz’ allegations would be assumed to be true, the University did not dispute Kickertz’ factual allegations. Rather, the University submitted only a short affidavit by Dr. Palatta, with two exhibits, to establish that the 2009 Code – not the 2005 Code – applied to the disciplinary proceedings. R.302-17. In her opposition, Kickertz argued that there were numerous facts in dispute that required a hearing, including: (1) whether Kickertz had falsified patient treatment records, (2) which Code of Ethics governed the dispute, and (3) whether the University violated the 2009 Code by denying Kickertz access to relevant witnesses and documents. R.457-58. Kickertz also submitted three additional affidavits and five additional exhibits. The University submitted a reply brief addressing the legal issues, and did not submit any additional evidence. R.614-28. H. The Supreme Court’s Decision. On February 3, 2011, the Supreme Court granted the University’s motion to dismiss. R.4-20. The court noted that it was “undisputed that, in an attempt to obtain the necessary PMV credits, Ms. Kickertz fabricated patient records.” R.7. “Specifically,” the court explained: Ms. Kickertz completed entries in various patient records and a patient chart indicating that she had provided the patients with certain treatment – 16 extractions and a bleaching in the course of a single afternoon. In fact, no such treatment had been provided, and it was Ms. Kickertz herself who had paid to NYU the fees that would have corresponded to that treatment. 22 Id. The court held that the University’s decision to dismiss Kickertz was based on both its disciplinary rules and its academic standards. R.8. The court noted that the disciplinary aspect was governed by the Code of Ethics, which prohibits, among other things: [a]ny action that interferes with the . . . clinical . . . activities at the College; . . . engaging in unprofessional behaviors; . . . cheating . . . ; misrepresentation of one’s own academic or clinical work; . . . and falsifying, tampering with, or destroying any academic or clinical record, document, or file. R.8 (quoting R.308-09). The court emphasized that “judicial review of disciplinary decisions by private educational institutions is extremely limited,” and that “the court’s inquiry should end” if “the institution has substantially complied with its written guidelines.” R.9. The court held that the University “substantially complied with the guidelines and procedures set forth in the Code of Ethics in effect at the time of the proceedings.” R.11. The court noted that Kickertz was relying on “an outdated set of rules” – i.e., the 2005 Code – and that this reliance was “misplaced.” Id. The court also rejected Kickertz’ claim that she was denied due process because she did not have the opportunity to confront the witnesses interviewed by the PRB, explaining that a student subject to disciplinary proceedings at a private university “is not entitled to the full panoply of due process rights.” Id. Similarly, the court 23 rejected Kickertz’ claim that she was denied the right to have counsel at the hearing, noting that neither the University guidelines nor the law entitled her to counsel, and that the University was not required to permit counsel as an accommodation for her medical condition. R.11-12. In any event, the court noted, Kickertz could not show that having counsel at the hearing would have made any difference, since she acknowledged that she had falsified patient records. R.12. The court added that, even if there had been “some deviation by NYU from literal compliance with its rules,” Kickertz had suffered no prejudice. R.11. With respect to the academic aspects of the University’s decision, the court held that “NYU properly considered the ethical issues” raised by Kickertz’ conduct, pointing to both the Ethics course in the College’s curriculum and Kickertz’ failure to “appropriately” complete the PMV requirements. R.9. The court explained that, viewed as an academic decision, “NYU’s determination is entitled to even greater deference,” pursuant to this Court’s decision in Tedeschi. R.12. The court rejected Kickertz’ claim that she could not be held responsible for failing to properly complete the PMV requirements because they had not been part of the curriculum when she enrolled in 2005. R.12-13. The court explained that “NYU has broad authority to set its curriculum,” and that it was “reasonable to include clinical practice as a requirement for graduation.” R.12. The court also rejected Kickertz’ attempt to “portray the PMV requirements as a money-making venture for NYU, 24 rather than as a serious curriculum requirement.” Id. Since the court could not find that the University’s decision to dismiss Kickertz was made in bad faith, arbitrary or capricious, Kickertz’ challenge was rejected. R.13. Finally, the court held that her dismissal did not “shock the conscience,” because it was premised on the “serious ethical breach” Kickertz committed by “falsification of patient medical records to obtain academic credit.” R.13-14.9 I. The Appellate Division’s Decision. Kickertz appealed. Kickertz argued principally that the Supreme Court erred in granting the petition because there were issues of fact that required a hearing, including whether the University had complied with its disciplinary procedures and whether Kickertz had falsified patient treatment records. 1. The Majority Opinion. The Appellate Division reversed. Rather than remand to permit the University to answer, however, a three-Justice majority (Justices Andrias, Saxe and Román) ruled that the petition should be granted. In doing so, the majority relied upon the exception discussed in BOCES, R.655-56, which recognized that courts 9 In the same opinion, the Supreme Court also granted the University’s motion to dismiss the plenary action Kickertz had filed. See R.14-20. Kickertz appealed that decision separately. On September 10, 2013, the First Department modified the order to allow Kickertz to replead six of the 16 causes of action, and otherwise affirmed. To date, Kickertz has not filed an amended complaint in that action. 25 were required under CPLR § 7804(f) to permit a respondent to answer “unless the facts are so fully presented . . . that it is clear that no dispute as to the facts exists and no prejudice will result.” 63 N.Y.2d at 102. The majority acknowledged that the record was incomplete, and that key pieces of evidence were not before the court, including the allegedly fraudulent patient chart, the fraudulent patient treatment records, documents relating to the proceedings of the PRB, and documents relating to the College Review Board’s review. R.648, 652. The majority also noted that many of the relevant facts were disputed, including when Dr. Meeker first advised Kickertz that she was short of satisfying her PMV requirement, R.642, and what took place in Kickertz’ conversations with Drs. Meeker and Hershkowitz on June 1, R.645. Nevertheless, the majority concluded that it could grant the petition because the relevant facts were “fully set forth in the record.” R.655. First, the majority determined that the decision to dismiss Kickertz was “undeniably disciplinary in nature,” R.649, even though the University never had an opportunity to demonstrate the academic purposes served by the PMV requirement. The majority accepted Kickertz’ assertions that the purpose was simply to generate revenue for the University, R.640-41, a claim the University strongly disputes. Treating the dismissal exclusively as a disciplinary issue, the majority held that Kickertz was entitled to relief because the University had not substantially 26 complied with its own guidelines. R.649-50. The majority found it unnecessary to decide whether the 2005 Code or the 2009 Code applied, because it held that the University had not substantially complied with either Code. R.650. The majority explained that if the 2005 Code was applicable, Kickertz was prejudiced because the University applied the 2009 Code, which provided fewer procedural protections. R.650-51. As to the 2009 Code, the Appellate Division suggested that the October 2009 hearing was tainted because the University had initially overlooked the requirement that Kickertz had the right to a hearing. R.651-52. The majority relied on this point even though it was undisputed that the University had corrected that error by withdrawing its initial dismissal and giving Kickertz the required hearing, and even though, as discussed below, the proper remedy for a violation of the University’s disciplinary procedures would be to give Kickertz another hearing, not to order that her dismissal be rescinded. The majority also found that the October 2009 hearing violated the 2009 Code requirement that “[t]he charges and supporting evidence shall be presented by the Investigating Panel.” R.652. The majority noted that neither Dr. Hershkowitz nor Dr. Meeker had testified, and that the case against Kickertz had relied upon the Investigating Panel report. Id. The majority also noted that Ms. Tartaglia was not called to testify, even though she was allegedly a key witness for 27 Kickertz. Id. The majority also pointed out several items of evidence that were not in the record, and noted that there was no proof the Investigating Panel, the PRB or the College Review Board had reviewed this evidence. Id. The court further found that the proceedings were not conducted in a manner to achieve “substantial justice,” and that Kickertz had not been afforded “a fair opportunity to question the witnesses of the other” side, as the Code required. R.653-55. The majority labeled the Investigating Panel report as “hearsay,” and stated that Kickertz had not been “afforded any, let alone a fair, opportunity to cross-examine the witnesses” against her. R.653. The majority also held that the 2009 Code was violated because certain procedural rulings were allegedly made by Dr. Palatta rather than the PRB. R.653-55. The majority recognized that, in light of its ruling, there was “no need” for the court to address whether the penalty of dismissal was “so disproportionate to the offense . . . as to be shocking to one’s sense of fairness.” R.657. Nevertheless, the majority went ahead to address that issue, in dicta, and ruled that the penalty shocked its sense of fairness. The court relied expressly on Kickertz’ one-sided and self-serving presentation of the facts, R.659, disregarding the fact that earlier in its opinion, the court had noted that these factual issues were disputed. R.642- 43, 645-47. 28 2. The Dissent. Two Justices (Gonzalez, P.J. and DeGrasse, J.) dissented, in an opinion by Justice Gonzalez. While they agreed that granting the motion to dismiss was error and that the petition should be reinstated, R.661, they argued that the University was entitled under CPLR § 7804(f) to answer the petition. Id. (citing BOCES and Bethelite). They argued that the majority was applying the BOCES exception too broadly, because there were “a number of disputed issues of fact in the record as presently developed.” R.662. As examples, the dissent cited factual disputes over whether Kickertz had falsified a patient’s chart and whether the 2009 Code or 2005 Code applied. Id. The dissent also noted that Kickertz’ petition demanded that she be reinstated as a student and granted a degree, and found it “[c]urious[ ]” that the majority would order the petition to be granted notwithstanding an open issue whether Kickertz had falsified patient records. R.663. J. The University’s Initial Appeal to this Court. On November 9, 2012, the University filed a notice of appeal in this Court. On November 27, 2012, the Court asked the parties to address whether the Appellate Division’s ruling “finally determined the action” within the meaning of CPLR § 5601(a), in light of the fact that some aspects of the relief sought in the petition had not been resolved. On November 28 and 30, 2012, the parties submitted letters addressing that question. In addition, on November 29, 2012, 29 Kickertz moved to dismiss the appeal for lack of jurisdiction, on the grounds that the two dissenting Justices disagreed on an issue of fact, not an issue of law; that their dissent would not have resolved the appeal in the University’s favor; and that the issue the University sought to raise was not properly preserved. On January 15, 2013, this Court dismissed the appeal for lack of jurisdiction, on the ground that the Appellate Division order did not finally determine the proceeding. Matter of Kickertz, 20 N.Y.3d 1004 (2013). The Court’s order did not address the jurisdictional issues argued in Kickertz’ motion. K. The Supreme Court’s Entry of Final Judgment. On February 12, 2013, the University moved for entry of final judgment in the Supreme Court. The University argued that Kickertz was not entitled to attorneys’ fees, and was not entitled to be awarded an NYU degree or the other relief she requested. In support of its motion, the University submitted affidavits and evidence that were not before the Supreme Court on the motion to dismiss, including the minutes of the October 2009 PRB hearing and copies of the records that Kickertz had falsified, as well as evidence that, while these legal proceedings had been pending, Kickertz had used her credits from the University to obtain a D.D.S. degree from Indiana University. Kickertz opposed the motion, and also filed a separate motion to enforce the Appellate Division decision, seeking her attorneys’ fees and a judgment ordering the University to grant her a degree. 30 On July 24, 2013, the Supreme Court entered a final judgment, granting the Article 78 petition and annulling the decision to dismiss Kickertz. R.636. However, the Supreme Court denied Kickertz’ request that the University be ordered to grant her a degree and her request for attorneys’ fees. The University appealed directly to this Court, pursuant to CPLR § 5601(d). R.632-33. Kickertz appealed the Supreme Court’s judgment to the Appellate Division, to the extent it did not grant her a degree or award her attorneys’ fees.10 L. Prior Proceedings on this Appeal. After the University filed its notice of appeal, this Court initially ordered the parties to proceed by the alternative letter-briefing procedure, pursuant to 22 NYCRR § 500.11. The University filed its opening letter-brief on October 18, 2013. Kickertz filed her opposition letter-brief on November 19, 2013, and the University replied on December 10, 2013. In addition to the record before the Appellate Division, the University submitted a “Compendium of Supreme Court Documents” with its letter-brief. The Compendium included the notice of appeal and its attachments (the Appellate Division’s decision and the Supreme Court’s final judgment), as well as the other documents the University had submitted to the Supreme Court on the motions for 10 Simultaneous appeals can go forward in both the Court of Appeals and the Appellate Division in these circumstances. See Harry R. Defler Corp. v. Kleeman, 18 N.Y.2d 797, 798 (1966). 31 final judgment. Kickertz moved to strike the Compendium, on the ground that the Appellate Division did not rely on the latter documents in rendering its decision. On January 21, 2014, this Court terminated its review of the appeal by the alternative procedure, and ordered the parties to proceed in the normal course of briefing and argument. That same day, this Court issued an order striking the pages in the Compendium other than the notice of appeal and its attachments. A R G U M E N T I. The Court Has Jurisdiction Over the University’s Appeal. This Court has jurisdiction over the University’s appeal under subsections (a) and (d) of CPLR § 5601. CPLR § 5601(a) provides that an appeal may be taken as of right from an order of the appellate division which finally determines the action, “where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal.” CPLR § 5601(d) makes subsection (a) applicable to appeals from the final judgment of a court of original instance, where the final judgment was necessarily affected by a prior non-final decision of the appellate division which, apart from finality, satisfied the requirements of subsection (a). In contrast with the earlier appeal filed by the University, it is now undisputed that the Supreme Court has entered a final judgment from which an appeal to this Court is proper as long as the other requirements of CPLR § 5601(a) are met. However, in her previously-filed letter-brief, Kickertz argued that this 32 Court lacked jurisdiction for three reasons: (1) the dissent in the Appellate Division was over a question of fact, not law; (2) the dissenting Justices would not have resolved the case in the University’s favor; and (3) the University failed to preserve for appeal the question whether the Appellate Division erred by denying the University an opportunity to answer the petition. Kickertz Letter-Brief at 12-21. For the reasons stated below, Kickertz’ arguments are without merit. A. Two Justices Dissented on a Question of Law. 1. The Appellate Division Did Not Agree on the Appropriate Legal Standard. CPLR § 7804(f) provides that after a motion to dismiss an Article 78 petition is denied, “the court shall permit the respondent to answer, upon such terms as may be just.” (Emphasis added). Thus, as this Court held in BOCES, generally “it is error to dismiss the petition on the merits prior to service of respondent’s answer.” 63 N.Y.2d at 101-02. The Court in BOCES suggested in dicta that CPLR § 7804(f)’s mandate might not apply where “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer.” 63 N.Y.2d at 102. To date, however, this Court has never held that a respondent in an Article 78 proceeding was properly denied the opportunity to answer the petition that is seemingly guaranteed by CPLR § 7804(f). This case ultimately requires the Court 33 to address the legal questions whether the exception suggested in BOCES should in fact be recognized to deny the respondent in an Article 78 proceeding an opportunity to answer, and if so, what the proper scope of that exception should be. The proper scope of any such exception is precisely what the majority and dissent in the Appellate Division disagreed about. The majority and dissent agreed that the Supreme Court should not have dismissed Kickertz’ petition. But they disagreed sharply on whether the University was entitled to answer following the denial of its motion to dismiss. This was a dispute over an issue of law. As the dissent put it, “CPLR 7804(f) requires us to permit respondent to serve and file an answer.” R.661 (emphasis added). Both the dissent and the majority cited the standard suggested in BOCES. But their opinions illustrate their fundamental disagreement about the scope of that standard. The dissent recognized that the BOCES exception was intended to be narrow. It pointed out that the wording of CPLR § 7804(f) was specifically modified from the language of CPLR § 404(a) to include mandatory language – the word “shall” – “indicating a ‘require[ment] that respondent be given an opportunity to answer if the motion is denied.’” R.661 (alterations in original and quotation omitted). The dissent also cited this Court’s decision in Bethelite, where the Court reversed the grant of an Article 78 petition. The Court in Bethelite undertook no analysis of whether the BOCES exception applied, and it is not clear 34 that the BOCES exception applies to the grant of an Article 78 petition; the Court simply held that the “Supreme Court erred in granting the petition without first affording respondents an opportunity to answer.” 8 N.Y.3d at 1002. The dissent concluded that “[b]y granting the petition in this case, the majority is repeating precisely the same error that formed the basis of the Bethelite reversal.” R.662. By contrast, the majority took a far broader approach to the BOCES exception, and would extend its scope far beyond this Court’s intended meaning. Under the majority’s analysis, the BOCES exception would apply even if it was not clear from the papers that the only disputed issue was one of law. Under the majority’s approach, the court could treat a motion to dismiss like a summary judgment motion, putting the burden on respondent to establish triable issues of fact and faulting the respondent for failing to present sufficient evidence to support its contentions – all without any notice to the respondent. The way the majority interpreted and applied the BOCES standard here is inappropriate and entirely inconsistent with the language of CPLR § 7804(f). Moreover, despite the dissent’s warning that the majority was making the same error as the court in Bethelite, the majority ignored Bethelite completely. It made no effort to reconcile its holding with Bethelite’s holding that it is error to grant an Article 78 petition without giving the respondent an opportunity to answer. 35 Thus, the majority and dissent disagreed on the appropriate legal standard, which is plainly a question of law. This Court has jurisdiction to address this issue and define the appropriate legal standard. 2. Whether Disputed Issues of Fact Exist Is a Question of Law. In addition, this Court has long recognized that “[i]t is a question of law whether a question of fact was presented upon the evidence.” Health Dep’t of City of N.Y. v. Dassori, 159 N.Y. 245, 249 (1899). This principle is well-established around the nation. “It has long been established and no longer is subject to any doubt that whether the evidence presented at trial is sufficient to create an issue of fact . . . is solely a question of law.” Wright & Miller, Fed. Prac. & Proc. § 2524. The point that such disputes are questions of law is clear when viewed in the context of summary judgment motions. It is well established that whether triable issues of fact preclude summary judgment is a “freely reviewable question of law.” La Riviere v. EEOC, 682 F.2d 1275, 1277-78 (9th Cir. 1982). Indeed, this Court – whose jurisdiction is generally limited to review of questions of law, see N.Y. Const. Art. 6 § 3(a) – routinely reviews disputes over whether there are triable issues of fact in the record on summary judgment. See, e.g., Sandford v. City of N.Y. Dep’t of Educ., 22 N.Y.3d 914, 916 (2013) (holding that there were triable issues of fact sufficient to withstand summary judgment); Tyson v. Nazarian, 20 36 N.Y.3d 967, 968 (2012) (same); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012) (same). As such, these disputes involve questions of law, not fact.11 B. The Dissent Would Have Ruled in the University’s Favor. It is also clear that the two-Justice dissent was “in favor of” the University, as required by CPLR § 5601(a). The majority in the Appellate Division ruled that the petition should be granted, that the case was essentially over and that Kickertz had won. In contrast, the dissenting justices argued that, while dismissal of the petition should be reversed and the case remanded for further proceedings, the University was entitled to answer the complaint and to litigate the case on its merits. Clearly that is a far more favorable decision for the University, and holds out the distinct possibility that the University will ultimately prevail in the litigation, once it can provide the court with a more complete record. The dissent’s view that the University was entitled to answer and litigate the case further is plainly a favorable result for the University, in contrast to the holding of the majority that it was not. The cases cited by Kickertz in her letter-brief are inapposite. For instance, in Christovao v. Unisol-Uniao de Coop. Transf. de Tomate do sul do Tejo, S.C.R.L., 11 Kickertz cited no cases supporting her claim that whether issues of fact exist is a question of fact. See Letter-Brief at 14. Kickertz relied on Matter of Daniel H., 15 N.Y.3d 883, 884 (2010), but that case involved a mixed question of fact and law. Kickertz also relied on Guaspari v. Gorsky, 29 N.Y.2d 891, 891 (1972), but there, the dissent disputed issues regarding the exercise of the court’s discretion. 37 41 N.Y.2d 338 (1977), the plaintiff appealed from an Appellate Division decision dismissing its complaint. The majority in the Appellate Division held that the complaint should be dismissed for lack of personal jurisdiction and for forum non conveniens. Id. at 338-39. The dissent agreed that the complaint should be dismissed, but only on forum non conveniens grounds. Id. at 339. Thus, neither opinion was in favor of the plaintiff, in any respect, as both agreed that the complaint should be dismissed.12 C. The University Has Not Failed to Preserve this Issue. Kickertz also argued that the University failed to preserve for appeal the issue of whether the Appellate Division erred by granting the petition rather than permitting the University to answer. Letter-Brief at 18-21. There is no merit to this contention. It is well-settled that when an error occurs for the first time in the Appellate Division, this Court may consider the issue even though it was not raised in the Appellate Division. In People ex rel. City of New York v. Yale, 249 N.Y. 150, 153 (1928), this Court held that it could review the error of the Appellate Division in allowing an award of costs to remain in an order, even though the Appellate Division’s ruling on the merits had “destroyed the statutory foundation 12 The other cases cited by Kickertz are irrelevant here, since the appeals in those cases were not dismissed on the ground the dissent was not over a question of law in the appellant’s favor, but because there was no question of law at all. See Lucas v. N.Y. City Tr. Auth., 76 N.Y.2d 933 (1990) (appeal dismissed because “dissent is not on a question of law”); Hemphill v. Hemphill, 78 N.Y.2d 1070 (1991) (appeal dismissed because “two-Justice dissent is not on a question of law”). 38 for the award of any costs,” because this error had arisen for the first time in the Appellate Division. As the Court explained, “[t]he petitioner brings here for review no error of the Special Term in awarding costs but the error of the Appellate Division in allowing the award of costs to remain in the order.” Id. That is the situation here. The issue in the Appellate Division was whether the Supreme Court’s dismissal of the petition was proper. Kickertz argued principally that there were factual disputes that should have precluded the Supreme Court from granting the motion to dismiss, and the University’s brief focused on defending the Supreme Court’s decision. The issue presented on this appeal regarding the Appellate Division’s error in granting the petition even though the University never had an opportunity to answer did not arise until the Appellate Division rendered its decision. The University could not reasonably be expected to anticipate that the Appellate Division would not only reverse the Supreme Court’s ruling, but order that the petition be granted in direct violation of CPLR § 7804(f). II. The Appellate Division Erred as a Matter of Law in Granting the Article 78 Petition Without Allowing the University to Answer. The Appellate Division erred in granting Kickertz’ Article 78 petition without allowing the University an opportunity to answer and defend the petition on the merits. First, the Appellate Division misconstrued the BOCES standard, and improperly understood it to allow the court to treat the respondent’s motion to dismiss like a summary judgment motion and, without notice, to grant the Article 39 78 petition if the respondent did not affirmatively establish that the facts alleged by petitioner were not true. Second, the Appellate Division plainly misapplied the BOCES standard, and erred in concluding both that the relevant facts were fully presented and that there were no disputed issues of fact. A. The Appellate Division Misinterpreted the BOCES Exception. As discussed above, CPLR § 7804(f) makes the procedure following the denial of a motion to dismiss an Article 78 petition clear: “If the motion is denied, the court shall permit the respondent to answer, upon such terms as may be just.” (Emphasis added). As the dissenting Justices pointed out, R.661, that mandatory language was purposeful and contrasts with the permissive language of CPLR § 404(a), governing other special proceedings, which states only that a court “may” permit an answer following denial of a pre-answer motion to dismiss. In light of the mandatory language of CPLR § 7804(f), it is generally “error to dismiss the petition on the merits prior to service of [the] respondent’s answer.” BOCES, 63 N.Y.2d at 101-02; accord Bethelite, 8 N.Y.3d at 1002 (“Supreme Court erred in granting the petition without first affording respondents an opportunity to answer”). In BOCES, this Court suggested that there might be room for a narrow exception to CPLR § 7804(f), where “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer.” 63 N.Y.2d at 102. In 40 so doing, the Court specifically referred to O’Hara v. Del Bello, 47 N.Y.2d 363 (1979), where the Court upheld the trial court’s conversion of a motion to dismiss into a motion for summary judgment, without notice to the respondent, because “the sole issue was one of statutory construction” and respondents could not show they were prejudiced. 47 N.Y.2d at 368. O’Hara thus set forth an exception to the rule that a court must ordinarily give notice to the parties before converting a motion to dismiss into a motion for summary judgment. See CPLR 3211(c). But the exception to CPLR 3211(c) recognized in O’Hara applies in very narrow circumstances, where it is clear that the dispositive issue involves only an issue of law. This Court has relied on O’Hara where it was clear that the only issue in dispute was a legal issue. See 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447, 453 (1983) (only dispute involved interpretation of contract). But the Court has cautioned that the principle in O’Hara should be used sparingly, since the purpose of CPLR 3211(c) would be nullified “were the notice requirement lightly to be ignored.” Rich v. Lefkovits, 56 N.Y.2d 276, 283 (1982). The O’Hara exception can be applied where the dispositive issue is an issue of law, because in that circumstance, there would be no point in allowing “an answer that raises no new factual or legal issue and will merely lead to a second motion addressed to an already determined issue.” See Matter of 230 Tenants Corp., 101 A.D.2d 53, 57 (1st Dep’t 1984). 41 Assuming the Court is prepared to establish a similar exception to the requirement of CPLR § 7804(f), as suggested in BOCES, similar principles should govern the scope of the exception. In particular, the exception suggested in BOCES was not intended to allow the Court to treat a motion to dismiss an Article 78 petition as a summary judgment motion, and put the burden on the respondent to come forward with evidence. But that is precisely what the Appellate Division did here. It reviewed the one-sided record and determined that the University had failed to provide evidence to contradict Kickertz’ allegations. This approach was inconsistent with BOCES, properly interpreted, and also failed to afford the University the deference due under this Court’s decisions to the disciplinary decisions of a private educational institution, see p. 54-55, infra. For instance, the Appellate Division held that the University had not substantially complied with the 2009 Code in part because the fraudulent patient chart and treatment records were not in the record and “there [was] no proof in the record that those documents were reviewed by the investigators, the PRB, or the College Review Board.” R.652. The Appellate Division also explained that there was no “evidence submitted supporting Meeker’s claim that petitioner had been notified of a shortfall in her PMV goal before the eve of graduation,” id., notwithstanding that there was an acknowledged factual dispute on this point and 42 the University had no burden to come forward with such evidence. The Appellate Division also took issue with the lack of evidence “demonstrating the reliability of the statements Hershkowitz and Meeker purportedly made to the Investigating Panel,” id., although the court’s insistence the University corroborate the testimony of the professors upon whom the PRB relied seems completely inconsistent with the deference to which university disciplinary decisions are entitled. And the Appellate Division accepted as true the statements of Dr. Ploumis regarding his conversations with Dr. Palatta about the October 7 hearing, simply because they were “without contradiction.” R.654. In sum, the Appellate Division repeatedly faulted the University for not producing evidence, when the University had no burden on a motion to dismiss to do so. Applying BOCES in this manner was an error of law and well beyond the proper scope of any exception to CPLR § 7804(f) that the Court should recognize. B. The BOCES Exception Is Inapplicable. Moreover, the Appellate Division plainly erred in concluding that the exception to CPLR § 7804(f) discussed by the Court in BOCES is applicable here. Contrary to the majority’s ruling, the facts have not been fully set forth in the record, and the facts that are in the record are hotly disputed and do not establish that Kickertz’ Article 78 petition should be granted. The University was clearly 43 prejudiced by being unable to answer, because it had no opportunity to present the facts supporting its action or to defend the petition on the merits. 1. The Appellate Division Erred in Determining That the Facts Were Fully Presented. The BOCES exception applies only when “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists.” 63 N.Y.2d at 102. Here, however, it is clear that the facts are not fully presented on the current record. Recognizing that the Supreme Court would have to accept Kickertz’ allegations as true for purposes of the motion to dismiss, the University did not submit any evidence regarding Kickertz’ conduct, the investigation of the Investigating Panel, the proceedings of the PRB, the review by the College Review Board, the academic purposes served by the PMV requirement, or any other relevant factual issue, and made no effort to rebut Kickertz’ factual allegations. The University only submitted a short declaration by Dr. Palatta to establish that the College had adopted a revised Code of Ethics in March 2009 and to put the text of the revised Code before the court, simply to make the narrow, quasi-legal point that the 2009 Code, rather than the 2005 Code, applied here. As a result, critical pieces of evidence are missing from the record. For instance, the 2009 Code requires a written summary of the hearing. R.265. That summary describes the procedure and substance of the hearing, and explains the 44 reasoning behind the PRB’s decision. It is clearly relevant – indeed, essential – to determining whether the University substantially complied with the 2009 Code. Similarly, the University did not submit evidence to demonstrate Kickertz’ misconduct or respond to her allegations. The University did not submit affidavits from Dr. Meeker, Dr. Hershkowitz, or any of the other witnesses who could have documented Kickertz’ misconduct and her admissions of wrongdoing, because such affidavits were obviously improper on a motion to dismiss. The University also did not submit the documents showing the false entries Kickertz entered on a patient chart or the fraudulent “encounter forms” that she submitted. Indeed, the Appellate Division acknowledged that these key pieces of evidence were missing. The court expressly noted that “neither the PRB nor College Review Board determinations” were in the record. R.648. The court also faulted the University for not producing the false patient chart or encounter forms, or evidence that those false treatment records were reviewed by the PRB. R.652. And the Appellate Division complained that there was no evidence to corroborate the testimony of Dr. Meeker and Dr. Hershkowitz. Id. Moreover, in concluding that Kickertz’ dismissal shocked the court’s conscience, the Appellate Division accepted as fact that Kickertz “was not informed until the night before her graduation” that she had a problem with the PMV requirement, and that the University had “frustrated petitioner’s ability to 45 complete her PMV requirements.” R.659. But the factual record regarding these allegations by Kickertz was woefully incomplete; the University disputed these contentions, and was deprived of an opportunity to demonstrate they were untrue. Finally, the Appellate Division also accepted Kickertz’ pejorative contention that the PMV requirements were simply intended to generate income for the University, R.641, when the record on this point was also inadequate. The University was deprived of any opportunity to demonstrate the academic purposes served by the PMV requirement and the College’s clinical program. 2. The Appellate Division Erred in Determining That There Were No Disputed Issues of Fact. Under BOCES, it must also be “clear that no dispute as to the facts exists.” 63 N.Y.2d at 102. Here, to the contrary, it is clear that there were significant disputed issues of fact relevant to whether Kickertz was entitled to relief. The Appellate Division in fact noted that many of the facts were disputed. These disputed facts included when Dr. Meeker first advised Kickertz that she was short of satisfying her PMV requirement, R.642; what Dr. Meeker told Kickertz on the day of graduation, May 26, R.643; whether Kickertz treated patients in the clinic in April and May, id.; and what took place in Kickertz’ conversations with Drs. Meeker and Hershkowitz on June 1, R.645. In addition, the Appellate Division relied on many of Kickertz’ allegations, without acknowledging that they were disputed. For example, the court expressly relied on Kickertz’ allegations 46 that Drs. Meeker and Hershkowitz frustrated her ability to satisfy the PMV requirements, R.648, 659; that other students were permitted to satisfy their PMV requirements by simply purchasing home bleaching kits, R.644; and that Kickertz was treated more harshly than other similarly situated students, R.659. The majority did not explain how it could properly find that there were no disputed facts for purposes of the BOCES exception in light of its acknowledgment that there were so many facts in dispute. To the extent Kickertz contends that these disputed facts do not relate to whether the University substantially complied with its disciplinary rules, that contention must be rejected. The majority found that the University did not provide Kickertz with “substantial justice,” R.653, but the disputed facts are clearly relevant to that determination. The facts before the court were one-sided and incomplete, but they obviously colored the Appellate Division’s view of the proceedings; without the University’s evidence, the Appellate Division could not properly ascertain that Kickertz did not receive substantial justice. Moreover, in holding that Kickertz’ dismissal “shocked the conscience,” the majority expressly relied on facts alleged by Kickertz which the majority had earlier acknowledged were disputed. R.659. There are numerous disputed facts specifically relevant to whether the University substantially complied with the disciplinary guidelines. For example, the Appellate Division held that the University had not complied with the 47 provision requiring that “[t]he charges and supporting evidence shall be presented by the Investigating Panel.” R.652. But the Appellate Division made that determination based entirely on Kickertz’ self-serving assertions, without seeing the PRB’s summary of the hearing or testimony from others who attended. The parties also dispute whether Kickertz falsified a patient’s chart and patient treatment records. The Appellate Division acknowledged this dispute and faulted the University for failing to provide proof that the falsified documents were reviewed by the investigators, the PRB, or the College Review Board. Id. In fact, the record suggests that the Investigating Panel did review a copy of the fraudulent documents when meeting with Dr. Hershkowitz. See R.115 (noting that the Panel interviewed Dr. Hershkowitz “in [his] office,” and that he had these records “in his possession”). In any event, if the University were given an opportunity to answer, it would provide additional evidence that Kickertz falsified the chart and treatment records and that the fraudulent documents were reviewed by investigators.13 13 The dissenting Justices pointed out that one of the disputed facts involved whether Kickertz had “falsified a patient’s chart.” R.662. The majority dismissed the relevance of this dispute, however, claiming that “it would be improper for NYU to produce the actual patient charts for the first time in the article 78 proceeding,” citing Kelly v. Safir, 96 N.Y.2d 32, 39 (2001). R.656. As the dissent pointed out, however, the majority was mistaken. R.662-63. Kelly involved the proper scope of judicial review of an administrative agency decision – not the decision of a private educational institution – and was based on judicial rulings that, in the context of “substantial evidence” review of administrative agency action, “review of an administrative determination is limited to the ‘facts and record 48 The majority also found that Kickertz had not been given a fair opportunity to question the University’s witnesses, relying on her claim that her requests to have Dr. Meeker, Dr. Hershkowitz, or Mr. Cornejo attend the hearing were denied. R.654. But if permitted to answer, the University would have shown that her requests were not denied; rather, she was instructed that it was her responsibility to contact the witnesses and tell them of the location and time of the hearing. The majority also held that the University had violated its rules by “refus[ing] petitioner’s request for contact information for potential witnesses, including Meeker, even though he was no longer at NYU.” Id. But this again was based solely on Kickertz’ allegations, and it is not true. In fact, Dr. Meeker has been on the faculty of the College of Dentistry at all times, and remains on the faculty today, as could have been readily verified by checking his page on the University’s public website. See NYU College of Dentistry Faculty Webpage, available at https://www.nyu.edu/dental/faculty/bios/ft/hgm1 (last visited April 1, 2014).14 adduced before the agency.’” 96 N.Y.2d at 39. The same standard does not apply to review of the disciplinary decisions of a private educational institution. See, e.g., Matter of Rensselaer Soc’y of Engineers, 260 A.D.2d 992, 993 (3d Dep’t 1999) (substantial evidence review does not apply to determination made pursuant to the hearing of a private university). 14 The Appellate Division apparently took this “fact” from Kickertz’ affidavit, where she attached an email about a “farewell party” for Dr. Meeker and drew the erroneous conclusion that he was saying “farewell to the university.” R.74, 154. The email, however, says nothing about Dr. Meeker leaving the University, and 49 Finally, the Appellate Division placed great weight on its conclusion that Dr. Palatta improperly ruled on matters of procedure for the hearing, whereas the 2009 Code stated that such rulings would be made by the PRB. R.653-54. But it is not clear that Dr. Palatta made these rulings, rather than simply being the one who communicated them to Kickertz. As the Appellate Division noted, Kickertz addressed these inquiries to Dr. Palatta, and he responded to them. Id. But absent the record of the PRB hearing, and the testimony of Dr. Palatta and other participants, there is no way of knowing what communications may have taken place among them with respect to Kickertz’ requests, and who actually made these decisions. Indeed, contrary to the Appellate Division’s holding, Kickertz’ affidavit states that it was the Peer Review Board that denied her requests. R.76 (“The Peer Review Board did not grant my request to have Dr. Meeker, Dr. Hershkowitz, or Mr. Cornejo attend the hearing.”). Moreover, many of the “decisions” Dr. Palatta supposedly made were simply explanations of what the rules provided. In any event, it is not clear that Kickertz was prejudiced by Dr. Palatta’s involvement in these decisions, or whether Kickertz could have raised them again in front of the PRB – the record suggests that she did, R.74-75. At bottom, even if it were true that Dr. Palatta apparently related to Dr. Meeker leaving the particular group practice for which he had acted as group practice director. 50 made these decisions, they would not justify the conclusion that the University did not “substantially” comply with the guidelines in the 2009 Code. 3. The University Was Prejudiced. The final requirement of the BOCES exception is that the court must find that “no prejudice will result from the failure to require an answer.” 63 N.Y.2d at 102. The Appellate Division erred in failing to address this requirement. Even if it had, the prejudice suffered by the University as a result of being precluded from answering the petition and litigating the case on its merits could not be more clear. The Appellate Division’s ruling was premised on a one-sided presentation of the facts, the University had no notice that its filing of a motion to dismiss would preclude further litigation, the University had no opportunity to provide the court with a full record, and – given Kickertz’ admitted misconduct – there is substantial reason to believe that the decision it reached will ultimately be upheld. C. This Court Should Vacate the Appellate Division’s Merits Rulings. Accordingly, this Court should, at a minimum, vacate the Appellate Division’s decision, hold that the Appellate Division erred in ordering the petition granted, and remand to the Supreme Court to permit the University to answer the petition and for further litigation.15 15 As explained in Point III, infra, the University contends that the Supreme Court’s order dismissing the petition was correct, and therefore that this Court should go further, reverse the Appellate Division’s decision in its entirety and 51 In granting this relief, the Court should make clear that it is also vacating the conclusions on the merits that the Appellate Division improperly drew, based on the one-sided and incomplete record before it. The purpose of permitting the University to answer is to permit further litigation of the merits and ensure that the petition is ultimately resolved on a more complete record. Vacating the Appellate Division’s rulings on the merits is essential to permit that purpose to be fulfilled. If the Appellate Division’s rulings were allowed to stand, they would be binding on the Supreme Court as the law of the case, and the University’s right to answer and litigate would be completely frustrated. Accordingly, the Court should vacate the Appellate Division’s ruling that the University’s decision was exclusively a disciplinary decision. R.649. The University did not have an opportunity to demonstrate the important academic purposes served by the PMV requirement, or that – because of her misconduct – Kickertz would have received a failing grade in this required clinical course, regardless of the amount of PMV she generated. The University should not be foreclosed from demonstrating the academic components of the PRB’s decision. The Court should also vacate the Appellate Division’s holdings that the University did not comply with the guidelines in the 2009 Code. R.650. This reinstate the Supreme Court’s order. However, if the Court rejects that argument – but agrees that the University should have been permitted to answer the petition – the University believes that the relief outlined in this section is appropriate. 52 necessarily includes the Appellate Division’s holdings that the charges and supporting evidence against Kickertz were not presented by the Investigating Panel, R.652; that Kickertz did not have a fair opportunity to question witnesses, R.653; that Dr. Palatta improperly made decisions that should have been made by the PRB, R.653-54; and that the proceedings did not provide Kickertz with “substantial justice,” R.653-55; as well as the Appellate Division’s suggestion that the hearing before the PRB was tainted by the University’s earlier error in initially dismissing Kickertz without giving her a hearing. R.651-52. All of these rulings were tainted because the Appellate Division only had one side of the facts, was missing key pieces of evidence, and improperly based its rulings on disputed facts. Finally, the Court should expressly vacate the Appellate Division’s dicta that the expulsion of Kickertz shocked the court’s sense of fairness. Again, that determination was based on Kickertz’ self-serving version of the facts, and the University did not have an opportunity to respond to the court’s concerns. Indeed, the Appellate Division expressly relied on Kickertz’ allegation that she was not informed about her PMV deficiency until the night before her graduation, R.659, even though the court had previously recognized that this fact was disputed, R.642, and on her implausible claim that faculty members had deliberately frustrated her ability to complete her PMV requirements, R.659, even though the court earlier recognized that these were merely Kickertz’ “claims.” R.645-46. 53 D. The Appellate Division Erred in Granting the Petition, Even if the University was Not Entitled to Answer. Even if the Court concludes that the Appellate Division correctly held that the University was not entitled to answer the petition, the relief it granted – ordering that the petition be granted in its entirety – was inappropriate. In Tedeschi, the Court held that “when a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.” 49 N.Y.2d at 660. But where the rules have not been “substantially observed,” the Court indicated that the proper remedy is to require the university to re-do the disciplinary procedure, and make sure that the appropriate rules are followed. The Court explained that Tedeschi was entitled to “have what the guideline accords her” – a hearing by the Student-Faculty Hearing Board and review by the college president – even though the university could still come to the same ultimate conclusion. Id. at 661. Tedeschi was therefore “entitled to judgment directing review by that body and that official as the guidelines require,” id. at 662 – not to the broader relief that she sought in her petition. Accordingly, even if the Court concludes that the University did not substantially comply with the 2009 Code, the proper remedy would be to order the University to conduct a new hearing in which Kickertz was offered the procedural protections specified in the 2009 Code. 54 III. The Supreme Court Properly Dismissed Kickertz’ Petition. In addition to its error in granting the petition without giving the University the opportunity to answer, the Appellate Division also erred in reversing the Supreme Court in the first place. The Supreme Court correctly determined that the University had substantially complied with the 2009 Code; that the University’s decision was valid on both disciplinary and academic grounds; and that given Kickertz’ serious misconduct, the University’s decision to dismiss her did not shock the conscience. The Appellate Division’s decision should be reversed, and the Supreme Court’s decision dismissing the petition should be reinstated.16 A. The Governing Legal Standards. The relationship between a private university and its students “is essentially a private one such that, absent some showing of State involvement, their disciplinary proceedings do not implicate the ‘full panoply of due process guarantees.’” Rensselaer Soc’y of Engineers, 260 A.D.2d at 994 (quoting Matter of Mu Ch. of Delta Kappa Episilon, 176 A.D.2d 11, 13-14 (3d Dep’t 1992)). Thus, judicial review of a university’s disciplinary determinations is limited to whether the university “substantially observed” its own rules or guidelines. Tedeschi, 49 16 There was no dissent in the Appellate Division on these issues. Nevertheless, the Court has jurisdiction to address them, because “once an appeal lies as of right under subdivision (a) of CPLR 5601, all questions properly raised below may be reviewed on the ensuing appeal.” Matter of Estate of Duchnowski, 31 N.Y.2d 991, 991 (1973). 55 N.Y.2d at 660. “Literal compliance” with the guidelines is not necessary. Zartoshti v. Columbia Univ., 79 A.D.3d 470, 471 (1st Dep’t 2010). If the university substantially complied with its written guidelines, the inquiry ends there. See Matter of Fernandez, 16 A.D.3d 227, 228 (1st Dep’t 2005) (noting that university complied with its guidelines and “petitioner was not entitled to more”). Judicial review of university decisions on academic matters is even more limited. Tedeschi, 49 N.Y.2d at 657-58. “Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution’s judgment of a student’s academic performance.” Susan M. v. New York Law School, 76 N.Y.2d 241, 245 (1990). As this Court has recognized, “[w]hen an educational institution issues a diploma to one of its students, it is, in effect, certifying to society that the student possesses all of the knowledge and skills that are required by his chosen discipline.” Matter of Olsson, 49 N.Y.2d 408, 413 (1980). For society to have confidence in those credentials, “it is essential that the decisions surrounding the issuance of these credentials be left to the sound judgment of the professional educators who monitor the progress of their students on a regular basis.” Id. The value of a university degree “would be seriously undermined” if courts stepped in and “requir[ed] universities to confer diplomas upon those who have been deemed to be unqualified.” Id. Accordingly, the courts will review a university’s decisions on academic matters only to determine whether 56 the institution acted in good faith, and whether the action was arbitrary or irrational. Tedeschi, 49 N.Y.2d at 658. B. The Appellate Division Erred in Determining that the University Violated Its Disciplinary Guidelines. The record before the Court, while incomplete, nevertheless demonstrates that the University substantially complied with the 2009 Code, and there is no legitimate question that the 2009 Code is applicable here. Thus, the Supreme Court correctly held that the petition should be dismissed. The Appellate Division’s decision is inconsistent with the deference the court was required to show the disciplinary decisions of a private university; improperly read the 2009 Code to require trial-type procedures that it does not contain and were never intended; and ultimately substituted the court’s own views as to the procedures that should have been followed rather than the procedures specified in the Code. First, there is no question that the University properly applied the 2009 Code, rather than the 2005 Code upon which Kickertz’ petition was based. The Affidavit of Dr. Palatta, R.302-17, established that the 2009 Code had been adopted in March 2009. See R.302 (“In March 2009 the College adopted a Peer Review Board (‘PRB’) which became responsible at that time for reviewing Doctor of Dental Surgery (‘DDS’) student compliance with the College’s Code of Ethics and Professional Conduct.”). There is no question that the 2009 Code was effective immediately. See R. 304 (“newly formed PEER REVIEW BOARD (PRB) is in 57 session”); R. 306 (“effective March 23, 2009”). The attached email from Dean Bertolami specifically explained that the new Peer Review Board “replaces the faculty-led Committee on Ethics and Professionalism for DDS students” which had been created under the 2005 Code. R.306. Since Kickertz’ unethical conduct took place after adoption of the new Code, the University acted properly in proceeding under that Code. Kickertz submitted no evidence to contradict the fact that the College had adopted the new Code in March 2009. In the Appellate Division, Kickertz pointed to the reference to the “Peer Review Board Proposal” on the Code attached to Dean Bertolami’s email, R.308 (emphasis added), but this reference simply meant that it was a “proposal” as of the date of that document (“2.6.09”), R. 308, and cannot override the explicit statements from the Dean and Assistant Dean that the Code had been adopted in March 2009 and was now in effect. Kickertz also sought to raise issues about whether the University had followed proper procedures in adopting the new Code, but there is no question that the 2009 Code had been adopted, and Kickertz has no standing to raise issues about whether the proper procedures were followed in the adoption process. Cf. Rensselaer Soc’y of Engineers, 260 A.D.2d at 993 (“[j]udicial scrutiny of the determination of disciplinary matters between a university and its students . . . is limited to determining whether the university substantially adhered to its own published rules and guidelines”). In any event, the 58 provision Kickertz relied upon specified the procedures that should be followed to make amendments to the 2005 Code, see R.426, and did not restrict the ability of the Dean to replace the 2005 Code with a new Code. The key provisions of the 2009 Code provided that Kickertz was entitled to the following: (1) a hearing before the PRB, where she would have the opportunity to address the evidence against her and present whatever testimony she wanted; (2) review of the PRB’s decision by the faculty’s College Review Board; and (3) the right to appeal any dismissal decision to the Dean of the College. R.313. The 2009 Code further provided that Kickertz had the right to be accompanied by an adviser at the hearing, and that she would have an opportunity to question any witnesses presented by the University at the hearing. R.313. The University substantially complied with these obligations. Kickertz indisputably received a hearing before the PRB. There is no question that prior to the hearing (indeed, months before), she had received a copy of the Investigating Panel’s report, that she had ample time to study the report, and that she had an opportunity at the hearing to challenge the reported facts and provide additional information or explanations. R.70, 74-75. There is also no question that the PRB’s decision was in fact reviewed and approved by the College Review Board, and that Kickertz was afforded and exercised her right to seek review of that decision by Dean Bertolami. R.78, 159. Moreover, Kickertz was accompanied at 59 the hearing by an adviser, Dr. Ploumis, R.181, and Dr. Ploumis continued to advocate for her throughout the appeals process. R.174-76. This was substantial compliance with the 2009 Code and, as the Supreme Court recognized, the court’s inquiry should have ended there. See R.9, 11. However, the Appellate Division demanded far more. Rather than accepting the procedures adopted by the University, the Appellate Division imposed its own vision of a trial-type hearing with full due process protections, and repeatedly faulted the University for not following procedures the court believed should have been employed. The Appellate Division’s approach was improper, and completely inconsistent with the deference that courts are required to give to university disciplinary decisions and the limited scope of judicial review. For example, the Appellate Division faulted the University for not allowing Kickertz to be represented at the hearing by her attorney. R.651. But the 2009 Code stated clearly that a student had only “the right to be accompanied at the hearing by an adviser, who may be a member of the faculty or any member of the College community.” R.313 (emphasis added). This was a deliberate change from the 2005 Code, which did give students the right to have counsel at a hearing. R.109. The 2009 Code was a conscious effort to get away from trial-type procedures, and to put primary responsibility for evaluating student ethical behavior in the hands of students. See R.304. This is why the PRB, consisting 60 solely of students, was created, and the faculty’s role in the hearing eliminated (though faculty review was preserved through the College Review Board and appeal to the Dean). The idea was to create an informal hearing before a student’s peers, and the presence of counsel would have undermined the goals of this type of proceeding. There is no doubt that the University had the right to adopt such a procedure, and the Appellate Division had no basis to question it. Similarly, the Appellate Division repeatedly faulted the University for relying on the report of the Investigating Panel. The Appellate Division pejoratively labeled the report as “hearsay,” R.653; it faulted the University for not having Dr. Hershkowitz or Dr. Meeker testify at the hearing, and relying instead upon the testimony they gave the Investigating Panel, R.652; and it faulted the University for failing to provide documents or other evidence to corroborate the doctors’ testimony. Id.; see also R.642.17 17 The Appellate Division’s opinion is also disrespectful and inappropriately skeptical of the testimony given by University witnesses. It referred to the testimony that Dr. Meeker “allegedly” gave to the Investigating Panel, R.642-43, though there was no reason to doubt what his testimony was. The Appellate Division noted that Dr. Meeker had not “provid[ed] supporting documentation,” R.642, even though the University was entitled to find his testimony credible without supporting documentation. It also referred to the admissions that Kickertz “allegedly” made to Dr. Hershkowitz, R.646, even though there was no reason to question Dr. Hershkowitz’ testimony (which was corroborated by his contemporaneous email reporting Kickertz’ conduct on the day it occurred), and the University was entitled to rely on his report. And the Appellate Division accepted the veracity of Kickertz’ claims over the contrary testimony of University 61 But the University was entitled to establish a procedure where the investigation was done by an Investigating Panel consisting of two students, who then prepared a report to the full Peer Review Board; this is exactly what the 2009 Code contemplated. See R.312. And the University was entitled to rely on that report in the hearing, even though it is technically hearsay. The 2009 Code expressly provided that the hearing would “not be restricted by the rules of evidence used in a court of law.” R.313. Moreover, this Court has recognized that “evidence may consist of hearsay,” even in the context of disciplinary hearings conducted in the public schools, which are governed by more stringent due process requirements. See Matter of Bd. of Educ. of Monticello, 91 N.Y.2d 133, 141 (1997). It follows, a fortiori, that there is no basis for objecting to a private university’s reliance on a hearsay report in its proceedings. The University was also entitled to rely on the Investigating Panel’s report without insisting on the corroborating documents or testimony that the Appellate Division demanded. The Appellate Division suggested that, in failing to produce Dr. Hershkowitz and Dr. Meeker as witnesses and relying on the Investigating Panel’s report, the University violated the 2009 Code provision “requir[ing] that ‘[t]he charges and supporting evidence . . . be presented by the Investigating Panel.’” witnesses, R.659. In all of these respects, the Appellate Division exceeded the permissible scope of judicial review, and failed to give the University’s decisionmaking process the deference to which it was entitled. 62 R.652 (quoting R.313). But nothing in the 2009 Code required that the “supporting evidence” include live witnesses. The fact that those witnesses did not testify does not mean that their evidence was not “presented” by the Investigating Panel in its report. In fact, the Investigating Panel’s report contained a detailed discussion of its interviews with these witnesses, R.114-19, and therefore “presented” their testimony to the PRB, just as the Code provision required. The Appellate Division also faulted the University for failing to make Kickertz’ “accusers” (i.e., Dr. Meeker and Dr. Hershkowitz) available for cross- examination. R.655. But nothing in the 2009 Code required the University to present live testimony. The Appellate Division relied upon the provision stating that “[e]ach side shall have a fair opportunity to question the witnesses of the other.” R.313; see R.653. But in context, that provision simply means that each side would have an opportunity to question any witness actually presented at the hearing. The provision follows immediately after a sentence stating that the Panel would have the right to question “any witness called by the parties or by the Panel,” R.313, and clearly refers back to any witnesses actually “called.” The Appellate Division erred in reading this provision to require the University to present live testimony. The Appellate Division also pointed out that Dr. Hershkowitz’ secretary, Ms. Tartaglia, was not called to testify, even though she had not been interviewed by 63 the Investigating Panel and was a “key element of petitioner’s defense.” R.652. But nothing in the 2009 Code imposed an obligation on the University to call defense witnesses to testify. Kickertz had every right and opportunity to call Ms. Tartaglia to testify in support of her defense, but failed to do so. There is no basis for the Appellate Division’s conclusion that the University somehow violated the 2009 Code by failing to present her testimony. The Appellate Division also found – based on the one-sided record – that Dr. Palatta “made and/or influenced” certain procedural rulings with respect to the hearing, R.655, and asserted that this violated the provision in the 2009 Code stating that “[a]ll matters of procedure not specified in the Code shall be decided by the Board at its discretion.” R.313. But the Appellate Division ignored the fact that Kickertz herself had directed those procedural questions to Dr. Palatta, see R.152-53, and it was not improper for him to respond. The Appellate Division also failed to consider that to a large extent, Dr. Palatta was simply informing Kickertz of the procedures already set forth in the Code, rather than making decisions on new procedural matters. For instance, the Appellate Division noted that Dr. Palatta would not let Kickertz’ adviser, Dr. Ploumis, question witnesses, R.654, but the 2009 Code specifically provided that the questions of either side “[s]hall be posed through the Chair,” R.313, and Dr. Palatta was merely communicating to Kickertz the procedures specified in the Code. 64 In any event, even if Dr. Palatta did make some procedural rulings in advance of the hearing, that fact would not undermine the conclusion that the University “substantially complied” with the 2009 Code. This is especially true since Kickertz could have raised those issues anew at the hearing, and it appears from the record that she did so. See R.74-75. Moreover, Kickertz was not prejudiced if Dr. Palatta made these rulings rather than the PRB. Finally, the Appellate Division suggested that the University’s initial error in failing to hold a hearing may have tainted the hearing held in October 2009. R.651-52. But there is no legal basis for this conclusion. Indeed, the courts have held that, if a disciplinary hearing must be redone, there is no requirement that a different person preside over the second hearing. See Shah v. Union College, 97 A.D.3d 949, 951 (3d Dep’t 2012) (university did not violate disciplinary rules by conducting new hearings before panels who served on initial hearings); Matter of Ebert, 28 A.D.3d 315, 315 (1st Dep’t 2006) (rejecting claim that hearing officer’s decision in second hearing was tainted by his initial determination). Moreover, as discussed above, this Court has recognized that if a student did not receive the appropriate process required by a university’s guidelines, the remedy is for the student to receive the process specified by those guidelines. Tedeschi, 49 N.Y.2d at 661. In doing so, this Court did not suggest that an initial determination pursuant to inadequate procedures would taint any subsequent determination. 65 In short, the Appellate Division substituted its own views as to what procedural safeguards would be appropriate for the actual requirements of the 2009 Code. The Appellate Division’s imposition of its own procedural requirements was improper and inconsistent with the deference private universities are entitled to. See Harris v. Trustees of Columbia Univ., 98 A.D.2d 58, 71 (1st Dep’t 1983) (Kassal, J., dissenting) (“the guiding principle remains that ‘[w]hen a university, in expelling a student, acts within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based on facts within its knowledge that justify the exercise of discretion, a court may not review the exercise of its discretion”), reversed for reasons stated in dissenting opinion, 62 N.Y.2d 956, 959-60 (1984). The Appellate Division attributed its searching inquiry to the provision in the 2009 Code providing that hearings “shall be conducted in a manner to achieve substantial justice.” R.655. But as the First Department has recognized, the provisions in a private university’s disciplinary rules are “circumscribed by the informal processes and limitations described therein, and [are] not intended to afford [a] petitioner the full panoply of due process rights.” Ebert, 28 A.D.3d at 315. The University did provide Kickertz with “substantial justice,” in accordance with the procedures specified in the 2009 Code. The Appellate Division’s conclusion to the contrary was erroneous as a matter of law. 66 C. The Appellate Division Erred In Determining that Kickertz’ Dismissal Had No Academic Component. The Appellate Division also erred by failing to defer to the University’s determination as an academic matter. The Supreme Court correctly held that the University’s decision to dismiss Kickertz was in part an academic decision, R.8-9, 12-13, and the Appellate Division erred in concluding instead that it was “undeniably disciplinary in nature.” R.649. 18 The evidence submitted by Kickertz shows that PMV credits were an academic aspect of the College of Dentistry curriculum. R.99. The College has a strong clinical program as an essential part of its curriculum, and the PMV credits were simply a way of measuring whether the student had achieved the clinical experience required to graduate. R.84, 88. It is undisputed that Kickertz attempted to satisfy the PMV requirement by creating false encounter forms for patients she did not see, and paying for the described procedures herself, rather than actually gaining the required clinical experience. R.166, 437. If Kickertz’ unethical conduct had not been promptly 18 The Appellate Division cited Katz v. Bd. of Regents of the Univ. of the State of N.Y., 85 A.D.3d 1277 (3d Dep’t 2011), to support its conclusion that Kickertz’ dismissal was disciplinary in nature. But that case considered whether a decision on plagiarism complied with the university’s disciplinary guidelines; it did not consider whether the decision was also an academic decision. 67 discovered, she would have been awarded a University degree under false pretenses, without actually completing the course work required. It is of no moment that Kickertz ultimately generated the required amount of PMV credits, as she claims, by returning to the clinic in June and treating additional patients. The purpose of the PMV program was to provide students with training in the principles of practice management, with the goal of “graduat[ing] efficient and ethical practitioners.” R.84, 88 (emphasis added). Kickertz’ actions were entirely inconsistent with the University’s goal of graduating ethical practitioners, and indeed would have led to a failing grade in her clinical course, whether or not she later satisfied the required monetary threshold. Accordingly, it was reasonable for the University to conclude that Kickertz’ ethical breach precluded her from satisfying the College’s clinical requirements and receiving a D.D.S. degree. See R.288-91. D. The Appellate Division Erred In Stating that Kickertz’ Dismissal Should Be Overturned Because it Shocked the Court’s Conscience. The Appellate Division also erred in concluding that the penalty of dismissal “shock[ed] one’s sense of fairness.” R.657. In the context of Article 78 proceedings generally, this Court has held that the sanction of an administrative agency will be upheld unless “the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” Matter of Pell, 34 N.Y.2d 222, 233 (1974). 68 To date, this Court has not applied that standard to disciplinary decisions of a private university. We respectfully submit that it should not apply that standard in this context, given the restraint courts must exercise in reviewing the decisions of academic institutions and the sensitivity of ordering a university to issue a degree over its objections. See Olsson, 49 N.Y.2d at 413. In any event, even if the “shock the conscience” test is applicable, the Appellate Division erred in concluding that it was met on the facts of this case. Even on the one-sided record now before the Court, there is no basis for concluding that Kickertz’ punishment is shockingly unfair. Kickertz admittedly falsified encounter forms reflecting purported treatment for patients that she did not in fact see, and paid for those procedures with her own money in an effort to meet her clinical requirement. R.67, 166, 436. The University’s investigation also reasonably found that she had also falsified a patient’s dental chart, and entered false information about medications and treatments that she had never provided. R.114-16. Kickertz’ falsification of these patient records and forms in order to satisfy her academic requirements was a serious offense that warranted dismissal. Indeed, Appellate Division decisions have upheld expulsions from educational institutions based on far less serious misconduct. See, e.g., Idahosa v. Farmingdale State Coll., 97 A.D.3d 580, 582 (2d Dep’t 2012), lv. denied 19 N.Y.3d 813 (2012) (upholding expulsion from nursing school for plagiarism); 69 Dequito v. New School for General Studies, 68 A.D.3d 559, 559 (1st Dep’t 2009) (upholding expulsion for plagiarism). For example, in Flores v. New York University, 79 A.D.3d 502, 503 (1st Dep’t 2010), the First Department found that a student’s dismissal for cheating on an exam was not shocking, and there is a substantial argument that Kickertz’ misconduct is more serious. Given her serious ethical breach, Kickertz’ dismissal was neither shocking nor unfair.